My recent discussion of the possible impact of Bill C-15 stirred up some discussion about whether I’m overstating the risk to small producers in residential areas.
Specifically, at least one thoughtful commenter remarked that I went “much too far” in suggesting that the aggravating factor “the production constituted a potential public safety hazard in a residential area” would broadly apply to most, if not virtually all, production in residential areas. Because this issue is critical to understanding just how pernicious this legislation is, I wanted to make a detailed reply.
There is clearly a difference between fact and opinion. Just as there is between a fully-researched and formed legal opinion and a short summary of legislation that hasn’t been ruled upon or interpreted by any court. Nobody can really say how this aggravating factor will be applied and, indeed, it will be applied differently in each case depending on the particular facts and what the Crown is able to prove. And taking anyone’s opinions on this legislation (or probably any legal issue) as fact rather than opinion is a bad idea – there are far too many pronouncements about the law that are made as if they are inarguably correct.
But I don’t think that differentiation detracts from these points: (1) the prohibitionists have waged a largely successful public relations battle that has the public, and many courts, believing that all cannabis production is or can be dangerous; and (2) people producing cannabis in residential areas are at risk (and I think real, tangible risk) of attracting the mandatory minimum.
Here is what the Minister of Justice says about this Bill in relation to production:
“Large grow operations imply both future trafficking activity and exporting. Because growers use insecticides, fungicides, fertilizers and other volatile material, and frequently obtain their electricity illegally, marijuana grow operations pose a threat to public health and safety.”http://www.justice.gc.ca/eng/news-nouv/nr-cp/2007/doc_32175.html
“Large” is open to interpretation, of course, but the slew of recent media on C-15 suggests that, among others, the Minister of Justice thinks that anything over five plants is large. Certainly 50 plants is going to be considered “large” by many Crown and judges.
Defence counsel will be able to point to Mr. Saint-Denis’ (senior Justice witness) testimony to the Senate to suggest that their client’s small, residential production was not the intended target of the legislation. Of course, medical producers are not the intended targets either but if one is convicted of producing 501 plants for purposes of selling to a compassion club the penalty is going to apply to them. Intent behind the legislation is not dispositive. And so if a judge believes that your small “quiet” grow constituted a potential danger – not an actual danger, but a potential danger – you are going to jail.
I should also point out that Mr. Saint-Denis’ example of what “danger” was being targeted was a production site that used insecticide. And the Ministry is worried about “insecticide, fungicides, fertilizers.” The purported risk of these supposed dangerous chemicals appears in many of the cases as well (I’ll say more about the caselaw below). It is claim that shouldn’t be examined uncritically. Most producers use insecticide. All use fertilizer. Some use fungicide. So if that is the “potential danger” many, many producers have a real risk of being caught by this legislation. Yet the insecticides and fertilizers typically used by small producers is identical in chemical constituents to that used by all manner of home gardeners and is available off the shelf in every garden store and nursery in Canada. Not to mention that used on every farm. Why that product somehow runs the risk of blowing up a house when used on cannabis but apparently not when used on Grandma’s petunias is never mentioned, by Mr. Saint-Denis or any other witness.
Mr. Saint-Denis’ testimony aside, and despite my disclaimer above that this law hasn’t been interpreted yet, the courts have had many opportunities to discuss the alleged dangers associated with cannabis production in residential areas. Doing so is already routinely used as an aggravating factor at sentencing even in the absence of specific facts relating that the individual site at issue. And that scares me. Judges are used to believing and finding, when pronouncing sentence, that residential cannabis production is dangerous and an aggravating factor. I am not optimistic that they will stop doing if it means that a mandatory sentence will be imposed.
R v. Pham and Vu 2008 BCPC 142 (http://www.canlii.org/en/bc/bcpc/doc/2008/2008bcpc142/2008bcpc142.html) is a good case to read to get a sense of how a sentencing analysis currently is conducted by a judge. Keep in mind that right now the standard of proof at sentencing is generally “balance of probabilities” but when dealing with aggravating factors the Crown must already prove them “beyond a reasonable doubt.” Factually it is not a small production site (600 plants) but in reviewing the decisions on conviction (R v. Pham and Vu 2007 BCPC 355; (http://www.canlii.com/en/bc/bcpc/doc/2007/2007bcpc355/2007bcpc355.html)) and on sentence I saw nothing to indicate any actual danger specific to the site was alleged much less proven. There was a hydro bypass but the accused were not convicted of that charge.
The sentencing judge had this to say:
 I find that at all material times the grow operation in issue in this case was operated in a home being used as a residence for the two accused and their children and accordingly, the three children were exposed to certain of the often described dangers inherent in grow operations in this case. They are well described in the cases on point and include the risks of fire, electrical in origin, or caused by high intensity lights used in closed spaces, electrical faults and grow rip violence.
 The mitigating factors include that Mr. Vu does not have a criminal record, restitution has been made to B.C. Hydro for the power taken, Mr. Vu was a refugee for a period of time, he is married, works and I am told was never on welfare. These may be seen as mitigating factors. Some of them also apply to Ms. Pham. She is married and worked, at least when in Campbell River.
 The aggravating factors in my view are Ms. Pham’s related record, the size and sophistication of the grow op, where it was located, and the probability it was run for profit. I consider it to be an aggravating factor that these two accused persons would expose their own children to the above risks.
Notice that none of the risks were said to be proven in this actual case. The judge is worried about risks “inherent in grow operations of this type”. That includes “grow rips” (another wildly overstated risk alleged by police but one that by its very nature applies to any production site) and fire. Notice also that these “risks” are “well described in the cases on point.”
The judge goes on to reflect on some of the cases in including R. v. Nguyen, 2002 BCCA 12, where the accused, a 46-year-old woman with an 18-year-old daughter and three minor children, and no criminal record and was convicted of keeping a grow operation of 263 plants. Not that many, frankly. The judge in that case said “In committing this offence, Ms. Nguyen exposed her eighteen year old daughter to prosecution and her younger children to the dangers of living with a marihuana grow operation, including harmful chemicals, risk of fire and risk of robbery.” Ms. Nguyen got eight months in jail, upheld on appeal by the BCCA.
After canvassing many cases, the sentencing judge in Pham and Vu had this to say about dangers:
 Ms. Pham and Mr. Vu exposed their own children on and about February 7th, 2005 and for some considerable time in all likelihood, and the public, to all the risks referred to in the authorities that exist with respect to grow operations. It seems they were either indifferent to their safety or because the commercial and financial gains in their very sophisticated grow operation were so significant, they chose to overlook them.
 While there is no evidence any weapons or booby-traps were found on the search, nonetheless this grow operation was in a residential area and all the well-known risks including of fire and grow rip activities were therefore being run in the midst of other people close at hand who were also exposed to potential danger if any of these risks materialized.
Both accused were sentenced to one year in prison. They were parents to minor children who were, as a result, deprived of both parents for an extened period of time. The judge thought it was better for the kids than being exposed to the “risks” of cannabis production. As you can see, none of those potential risks were proven to actually exist in the case. Instead they are those “well known” risks “referred to in the authorities” that when the production is “run in the midst of other people close at hand” expose people “to potential danger if any of these risks materialized.”
Note that the legislation imposing mandatory sentences does not require actual risk, just potential risk.
My fear, and I think it is very legitimate, is that because judges and caselaw already establish that producing cannabis in a residential area involves “potential risks” to the public that are “well known” this aggravating factor is going to be applied widely and often irrespective of whether the particular production site at issue was, in fact, risky at all.
Kirk Tousaw, Executive Director
Beyond Prohibition Foundation
142 – 757 West Hastings, Suite 211
Vancouver BC V6C 1A1
Working to repeal cannabis prohibition and replace it with a regulated and controlled system of production and access.